Legal scholars seek to reverse campaign finance decision Court opened way in 1976 for today's abuses, they say

November 10, 1996|By NEW YORK TIMES NEWS SERVICE

WASHINGTON -- A group of prominent constitutional scholars has begun a campaign to get the Supreme Court to overturn a 20-year-old landmark decision that has allowed unlimited amounts of money to flow into political races.

The group is seeking to overturn Buckley vs. Valeo, a 1976 decision that struck down some of the Watergate-era campaign finance changes that Congress had enacted in 1974.

By its ruling, the court removed any limits on campaign spending.

In Buckley, the court said that any infringement on campaign spending was an infringement on free speech. That action, legal scholars say, opened the floodgates to the high-cost campaigns of today.

"This was a bad decision," said Professor Ronald Dworkin of the New York University Law School, who is involved in the scholars' campaign.

"Public opinion is now becoming revolted at the amount of money in politics. And that may provoke the court into reconsidering this decision. The Buckley decision appears to try to represent an ideal of democracy, but it is an incomplete ideal."

Dworkin and 25 other scholars have signed a statement calling on the court to reconsider and reverse the decision.

The effort is being coordinated by the Brennan Center for Justice at New York University, a nonprofit organization named for former Supreme Court Justice William J. Brennan Jr.

The Brennan Center plans to hold a conference on the subject and is also planning to have federal judges hold mock Supreme Court arguments on the case.

The legal scholars are also speaking out. In an article in a recent issue of the New York Review of Books, Dworkin said: "The case for overruling Buckley is a strong one, and we should feel no compunction in declaring the decision a mistake. The decision misunderstood not only what free speech really is, but what it really means for free people to govern themselves."

Among the scholars signing the statement are Bruce Ackerman, a professor at Yale Law School; Peter Arenella, a professor at the law school of the University of California at Los Angeles; John Rawls, a professor emeritus of law at Harvard University; Milton S. Gwirtzman, a member of the senior advisory board at the John F. Kennedy School of Government at Harvard; and Robert Aronson, a professor at the University of Washington law school.

Professor Erwin Chemerinsky of the University of Southern California law school, who is among the signers, said: "My hope is that if I and other scholars speak long enough and are persuasive enough, it might swing the Court. Having experts in constitutional law speak out might make a difference. I believe the court was wrong with Buckley."

Yet even these scholars believe their efforts may be a long shot, given a recent court decision and many lower-court decisions that have been moving in the opposite direction of overturning Buckley and have, instead, allowed money to be spent even more freely on behalf of candidates for federal office.

Congress passed legislation in 1974 to curb the excesses of the Watergate scandal, limiting both the amount of money that could be raised and spent in a political campaign.

The Buckley decision had, as its central element, the elimination of restrictions that Congress had imposed on campaign spending but, in what critics say was odd, it left in place restrictions on contributions.

This, over time, has had the effect of allowing candidates to spend as much money as they want -- something the court said was protected by the First Amendment guarantee of free speech.

But it forced candidates to come up with creative fund-raising strategies to skirt restrictions that limited campaign donations to $1,000 from individuals and $5,000 from political action committees.

"The court struck down one-half of the 1974 law and left the other half in effect, and we ended up with a law that was the worst of all," said Burton Neuborne, a New York University law professor and head of the Brennan Center.

"The worst part of all," Neuborne added, "is that as a result of Buckley, the campaign finance laws are shot with loopholes because candidates have to drive though all of them in order to get money."

Since the Buckley decision, candidates and the political parties have become masters at exploiting all loopholes to meet the demand for campaign money.

This year's biggest development is the growth in the use of "soft money" -- funds that can be raised by political parties in unlimited amounts and spent by them in behalf of candidates for federal office. Donations to the parties avoid the tight $1,000-per-candidate limit.

Moreover, in a subsequent ruling handed down last June, the court upheld a decision in a Colorado case that allows political parties to spend unlimited amounts on "independent ads" -- advertisements that are on behalf of candidates but are not designed in coordination with them.